You have a constitutionally protected right to appeal a finding of guilt against you by a judge or jury in a criminal case. You can also appeal preliminary findings made by a judge regarding admissibility of evidence, search and seizure challenges, and other findings of law. In most instances, the appeal of a finding or ruling must be made within 30 days of the verdict or finding. There are exceptions, but it is important to have an attorney evaluate your case promptly to advise you about the deadlines pertaining to your matter.
If you enter a plea of guilty, you will typically waive the right to appeal a finding of guilt. However, you can still potentially challenge an erroneous sentence (i.e. one that exceeds the maximum or “standard range” for the offense).
We have represented numerous clients in appeals initiated by either the defendant or the prosecution, including appeals to the Court of Appeals and the Washington Supreme Court. Appeals must be handled by a lawyer who is talented not only in legal research and writing, but also oral advocacy before a judge (sometimes a panel of judges). We are happy to discuss appellate options with you. There is a very limited time frame to preserve your rights to an appeal, so it is critical to speak with competent counsel before that deadline passes and your right to appeal is gone forever.
You also have the option of appealing administrative decisions in hearings with the Department of Licensing, as well as civil proceedings like anti-harassment petitions or protection orders. These are not covered by the same constitutional protections and will typically require a filing fee. However, you have important property rights at stake (like your driving privilege), and your freedom of association can be impacted by orders of restraint. It’s important to talk to an appellate attorney about all of your rights and options on appeal.
Here are some recent summaries of appeals we have handled in this office:
- DUI Conviction Reversed on appeal : July 25, 2011
The Skamania County Superior Court has reversed a DUI conviction and ordered a new trial in a case where the breath test results (BAC) were improperly given to a jury. The improper admission of BAC evidence was prejudicial to a defendant and the prejudice could not be cured by a judge telling a jury to disregard the evidence. The Court found that our client’s trial attorney had provided ineffective assistance of counsel when he failed to ask the court to grant a mistrial so the defendant could receive a fair trial without the jury knowing the BAC result. We handled the appeal of this matter, which can be found at State v. P.L., 10-1-00006-1.
- Prosecutor’s Office Concedes Confrontation Clause Violation.
The Thurston County Prosecutor’s Office has conceded on appeal that the district court violated the defendant’s Constitutional Right to confront witnesses where it allowed the State to admit into evidence a “proof of service” form alleging the defendant was served notice of a no contact order without testimony from the police officer who signed the form. According to Massachusetts v. Melendez-Diaz, a sworn statement offered to prove an element of a crime is “testimony,” and the 6th Amendment to the Constitution affords a defendant the right to question state witnesses who offer evidence against him at trial. On appeal, the prosecutor’s office conceded its argument at trial was wrong, and that a defendant at trial must be able to question the person who alleges they served the defendant with a no contact order. This may possibly be the first ruling in the State of Washington to apply Melendez-Diaz to a “proof of service” form commonly used at trial as a substitute to live testimony. Particularly in Thurston County, this concession should substantially alter how the prosecutor’s office prosecutes no contact order violation cases. See State of Washington v. J. H., Case No. 10-1-00109-7.
- Court Rules Due Process Clause Requires DOL to Apply “Safely Off Roadway” Defense to Licensing Hearings.
A King County Superior Court judge has reversed a DOL license revocation holding the State violates the Due Process Clause of the 14th Amendment to the U.S. Constitution when the DOL refuses to apply the “Safely off Roadway” defense to physical control DUI cases. The “Safely off Roadway” defense is written into the physical control law and states a person may not be convicted of DUI if prior to being pursued by police the person moves his/her car safely off the roadway. Historically, the DOL has refused to consider this defense because the implied consent law does not specifically acknowledge the defense. This has meant intoxicated drivers who “do the right thing” and get off the road can still lose their license if arrested even though they cannot be convicted in court of any crime. The Superior Court ruled a person’s right to a license is too great, and the consequences to the DOL too insignificant, to deny a person the right to argue the defense should prevent an unjust license revocation. With this decision, the hope is that the DOL will accept legitimate “Safely off Roadway” defenses and uphold the driving privileges of drivers who “do the right thing” and get off the road when they feel it is unsafe to drive. See N. S. v. Dept of Licensing, Case No. 10-2-10775-4 SEA.
- Court Rejects Prosecutorial Misconduct Claim Where Prosecutor Made References to Anti-Semitism.
The Court of Appeals has rejected a prosecutorial misconduct claim where the prosecutor made several gratuitous references to anti-Semitism in closing argument. The defendant was charged with first degree assault after shooting a man in the course of a fight. The shooting victim claimed he confronted the defendant because a Jewish friend had been insulted at the defendant’s party. The issue of anti-Semitic comments was raised only briefly during trial, and no witness ever testified to what the actual references were. In closing argument the prosecutor gave specific examples of anti-Semitic statements, which the defense argued on appeal was an attempt to sway the jury to feel sympathy for the victim, and to resentment towards the defendant. The Court affirmed the conviction finding the comments were not egregious, but more importantly it faulted the trial lawyer for failing to object to the argument during trial. See State of Washington v. Edo Aslanyan, Case No. 63142-0-I (Div. 2).
- Court Reverses License Revocation Where DOL Used Evidence Never Offered at Hearing to Revoke License.
A King County Superior Court judge has reversed a license revocation finding it was based on evidence the DOL had forgot to offer during the licensing hearing. To comport with Due Process any judicial hearing must rely on evidence offered at the time of the hearing and allow the opponent to question the evidence. In this case the hearing examiner forgot to introduce evidence the breath test machine was certified, but ruled against the driver and considered the evidence anyways. The court rejected the State’s argument that the error unintentional, and rejected the claim the hearing should be held over again to allow the DOL the opportunity to correctly offer the evidence. See M. F. v. Dept of Licensing, Case No. 10-2-07992-1 SEA.
- Court Rejects Claim Implied Consent Warning Misleading Because Issue Was Not Raised at Hearing.
A King County Superior Court judge has rejected a driver’s claim he was misled by the implied consent warning because he was a commercial driver. While the judge was troubled by the wording of the warning given to commercial drivers, she ultimately ruled against the driver because his driver failed to argue the issue before the DOL hearing examiner. See J. A. v. Dept of Licensing, Case No. 09-2-44999-6 SEA.
